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Consent to Search: Co-Tenant; Counsel: Request for Substitute; Personal Presence: Forfeiture by Misconduct; Right to Testify: Waiver; Judicial Bias: Lapse in Decorum

State v. Calvin Jerome Pirtle, 2011 WI App 89(recommended for publication); for Pirtle: Christopher J. Cherella; case activity

Consent to Search – Georgia v. Randolph

Pirtle’s failure to object to the police presence allowed them to act on the co-tenant’s consent to a warrantless search under Georgia v. Randolph, 547 U.S. 103 (2006):

¶15      In Randolph, an estranged married couple, Scott and Janet Randolph, were fighting over the custody of their son.  Id., 547 U.S. at 106–107.  Although Mrs. Randolph let the police search their home for illegal drugs, Mr. Randolph refused to give the police his permission.  Id., 547 U.S. at 107.  Randolph held that in co-habitation cases, where both are present, a search is unlawful when one consents but the other expressly refuses to consent.  Id., 547 U.S. at 122–123.  Unlike the situation in Randolph, Pirtle did not initially object to the police entering the home.  He voluntarily walked out with the police and sat in the police wagon, leaving the other police officers with Shields, who had, as we have seen, asked them to come in.  This made the initial entry and search lawful.  When the police found the body, they stopped the search and asked for Pirtle’s consent.  When he refused to consent, the police got a search warrant before continuing.[1] Accordingly, the trial court properly denied Pirtle’s motion to suppress.

Pending on the supreme court docket, and likely to be decided soon: State v. Brian T. St. Martin, No. 2009AP1209-CR, asking whether Randolph applies when the defendant is “taken forcibly from his residence by law enforcement officers but remains in close physical proximity to the residence such that the refusal is made directly to law enforcement on the scene.” Noted here not because it bears factual similarity but, to the contrary, to point to yet another variation on the Randolph theme.

Request for New Counsel

The trial court properly dealt with Pirtle’s request for new counsel, finding that it was designed to delay the case, and that the conflict between Pirtle and counsel didn’t cause “total lack of communication,” ¶¶16-20.

Trial court obligations, standard of review on appeal, recited, ¶¶16-17. Fact-intensive, as is typical for the issue.

Right to Presence

Pirtle’s right to presence was both waived and forfeited “because he disruptive and disrespectful,” ¶¶22-24 (warnings by court, interruptions by Pirtle, citing Illinois v. Allen, 397 U.S. 337, 343 (1970)):

¶24      The Record conclusively shows that Pirtle both waived and forfeited his right to be present in court, until he decided to return and was permitted to do so.  See Allen, 397 U.S. at 343 (“The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated.”). Those who disregard the standards will not be rewarded by reversal on appeal.

Defendant’s Right to Testify

Trial court colloquy adequately established waiver of right to testify, pursuant to State v. Weed, 2003 WI 85, ¶40, 263 Wis. 2d 434, 666 N.W.2d 485. Slip op., ¶¶28-33.

Judicial Bias

Trial judge terming Pirtle a “piece of garbage” not enough, in context, to establish judicial bias:

¶34 Pirtle claims that he deserves a new sentencing hearing because the trial court’s “piece of garbage” remark showed judicial bias, resulting in an unfair sentence. In analyzing a judicial-bias claim, we start with the “presumption that the judge is free of bias and prejudice.” State v. Neuaone, 2005 WI App 124, ¶16, 284 Wis. 2d 473, 485, 700 N.W.2d 298, 304. Pirtle has the burden to prove the trial court was biased. See ibid.

In determining the question, we apply both a subjective and an objective test. We first look to the challenged judge’s own determination of whether the judge will be able to act impartially. Next, we look to whether there are objective facts demonstrating that the judge was actually biased. This requires that the judge actually treated the defendant unfairly.

Ibid. (citations omitted). Whether a judge was objectively not impartial is a question of law that we review independently. Murray v. Murray, 128 Wis. 2d 458, 463, 383 N.W.2d 904, 907 (Ct. App. 1986). A judge’s negative comments do not automatically equal bias:

Not establishing bias or partiality … are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge’s ordinary efforts at courtroom administration–even a stern and short-tempered judge’s ordinary efforts at courtroom administration–remain immune.

Liteky v. United States, 510 U.S. 540, 555–556 (1994) (emphasis by Liteky).

¶35 Neither we nor, significantly, the trial court approve calling any party or person in court “a piece of garbage.” The Record here reflects, however, the trial court’s justifiable frustration with Pirtle’s disruptions and disrespect. The trial court’s admitted momentary lapse does not, in any sense of the word, reflect objective bias. Further, the trial court subjectively determined that it was not biased. This determination is binding. See State v. McBride, 187 Wis. 2d 409, 415, 523 N.W.2d 106, 110 (Ct. App. 1994).

Background facts recited, ¶¶6-10.

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